Plaintiffs v First defendant

1 The plaintiffs are the registered proprietors of the property situated at and known as 21 William Street, South Yarra. Adjacent to their property is a laneway that has William Street at the eastern end of it and Lovers' Walk at the western end ('the laneway').[1]

2 This proceeding concerns the laneway and the use of it by the public. The plaintiffs claim that the use of the laneway by the general public has affected their enjoyment of their property. They seek declaratory relief as to the proper characterisation of the laneway in law and pecuniary relief reflecting the loss and damage suffered by the plaintiffs due to alleged acts of nuisance.

3 Both the laneway and the plaintiffs' property are situated within the municipal district of the first defendant. The second defendant was subsequently added to the proceeding and, for present purposes, is to be treated as the registered proprietor of the land on which the laneway runs.[2]

4 It was agreed by the parties that the legal status of the laneway be dealt with initially as the resolution of this issue would clarify and expedite the plaintiffs' action in nuisance.

5 In respect of the declaratory relief sought concerning the legal status of the laneway, the plaintiff seek declarations to the effect that the laneway:

(a) is not a 'road' within the meaning of the Local Government Act 1989 ('the LG Act');

(b) is not a 'road' within the meaning of the Road Management Act 2004 ('the RM Act');

(c) is not a 'road' within the meaning of the common law; and

(d) is not a 'public highway' within the meaning of the common law.

6 The plaintiffs also seek declaratory relief with a view to controlling the use of the laneway in the future in that they seek a declaration to the effect that the second defendant must erect a barrier to prevent the general public from accessing the laneway, alternatively, a declaration to the effect that the second defendant must provide the plaintiffs with an irrevocable authority to erect such a barrier themselves.

7 The trial of the proceeding was conducted on an agreed statement of agreed facts as follows:

(a) The plaintiffs are the registered proprietors of the land situate at and known as 21 William Street, South Yarra, being all of the land more particularly described in Certificate of Title Volume 4371 Folio 077 ('the plaintiffs' land').

(b) The land described in Certificate of Title Volume 9990 Folio 084 ('the railway land') is registered in the name of the Metropolitan Transit Authority and allocated to the second defendant by virtue of an Allocation Statement dated 30 June 1996 pursuant to the Rail Corporations Act 1996 (superseded by the Rail Management Act 1996).

(c) In 1893, Certificate of Title Volume 2473 Folio 475 was registered ('the original land').

(d) The original land contained a right of carriageway over the laneway delineated and coloured brown on the map shown on the title.

(e) In 1908, Certificate of Title Volume 3268 Folio 446 was registered ('the parent railway land').

(f) On 16 August 1917, the Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne were registered as the proprietors of the original land.

(g) On 24 June 1920, the Registrar of Titles registered Transfer of Land numbered 947758.

(h) On 6 May 1920, by virtue of Transfer of Land numbered 947758, the Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne transferred to the Victorian Railways Commissioners the land coloured on the plan shown on Transfer of Land numbered 947758, being part of the original land.

(i) On 22 June 1920, the Registrar of Titles registered Creation of Easement numbered 947759.

(j) By virtue of Creation of Easement numbered 947759, the Victorian Railways Commissioners granted to the Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne and their transferees in fee simple full and free right and liberty to and for them as registered proprietors or proprietor for the time being all that piece of land being the plaintiffs' land or any part thereof and their his or her tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along all that piece of land being part of the railway land, being the land delineated and coloured brown on the plan annexed to creation of Easement numbered 947759 (being the land referred to as the laneway in these reasons).

(k) On 24 June 1920, the Registrar of Titles registered the title for the plaintiffs' land. The title designated the laneway as a road.

(l) On 24 June 1920, Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne were the registered proprietors of the plaintiffs' land.

(m) Immediately before registration of Certificate of Title Volume 4371 Folio 077, the plaintiffs' land was part of the original land.

(n) On 23 December 1925, the Registrar of Titles registered Certificate of Title Volume 5081 Folio 179 ('the neighbours' land').

(o) The neighbours' land comprised all that land delineated and coloured red on the map shown on Certificate of Title Volume 5081 Folio 179.

(p) On 13 October 1978, Robert George Simpson and Roy McGowan Simpson became the registered proprietors of the neighbours' land.

(q) On 20 May 1982, the Registrar of Titles registered Creation of Easement numbered J935707.

(r) By virtue of Creation of Easement number J935707, the Victorian Railways Board granted Robert George Simpson and Roy McGowan Simpson and their and each of their respective executors, administrators and transferees in fee simple as the registered proprietor or proprietors for the time being of the neighbours' land full and free right and liberty to and for them at all times thereafter to use for carriageway purposes all of the laneway, and for such carriageway purposes to have subject to the rights of other persons entitled to easements for carriageway purposes thereover, full and free right and liberty to and for them and their tenants, contractors, servants, agents, workmen and visitors at all times and from time to time hereafter to go pass and repass thereover either with or without vehicles, machines, horses or other animals, carts or other carriages and for all purposes into and out of and from and over the laneway.

(s) On 22 November 1990, the Registrar of Titles registered Plan of Consolidation 168796S.

(t) Certificate of Title Volume 9990 Folio 084 was created by Plan of Consolidation 168796S.

(u) The laneway is now contained in part of the railway land.

(v) On or about 7 July 2004, the first defendant registered the laneway as a laneway (asset number 19568) on the first defendant's Register of Public Roads.

(w) On 26 April 2012, the plaintiffs were registered as proprietors of the plaintiffs' land.

(x) Since 26 April 2012, the plaintiffs have lived at the plaintiffs' land.

(y) On or about 22 January 2013, the plaintiffs submitted an application to the second defendant to purchase the laneway ('the application').

(z) On or about 7 March 2013, the second defendant notified the second plaintiff (Mrs Anderson) that it had reviewed the application and that it had determined that the laneway was not available for sale.

(aa) On or about 27 November 2013, the plaintiffs caused a fence to be erected at the western end of the laneway.

(bb) On or about 19 December 2013, the first defendant removed the fence that had been erected at the western end of the laneway.

(cc) On or about 29 August 2014, the plaintiffs again caused a fence to be erected at the western end of the laneway. They subsequently removed that fence on or about 1 October 2014.

(dd) On 29 October 2014, the plaintiffs met with representatives from the first defendant, the second defendant and Victoria Police at the Prahran Town Hall. At the meeting, the parties discussed a number of actions to address the plaintiffs' concerns, including without limitation:

(i) Victoria Police briefing the Community Action Response Team to patrol the laneway on Friday and Saturday nights;

(ii) Victoria Police scheduling foot patrols down Lovers' Walk and the laneway;

(iii) Victoria Police arranging for a security assessment of the properties and the laneway, and making recommendations to create a safer environment; and

(iv) the first defendant offering a graffiti removal service in respect of the wall of the plaintiffs' land along the laneway.

(ee) On or about 5 December 2014, Leading Senior Constable Mark James of the Southern Metropolitan Region - Division One Crime Prevention Officer, prepared a report containing observations and recommendations based on an audit conducted in respect of the laneway. The report contained the following observations and recommendations (amongst others):

(ii) sightlines are good with almost no places that offered concealment;

(iii) residents should be encouraged to identify and report suspicious activity;

(iv) the laneway is adequately illuminated at night;

(v) light bulbs should be replaced, and the reflectors and glass covers should be cleaned;

(vi) graffiti and litter should be cleaned regularly;

(viii) the laneway is one of the safer lanes within the City of Stonnington.

(ff) The laneway has been used as a public pedestrian access to Lovers' Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed as a laneway, or alternatively for a long period of time.

(gg) The first defendant has not declared by notice published in the Victoria Government Gazette the laneway to be a public highway pursuant to section 204 of the LG Act.

8 The determination of whether the plaintiffs are entitled to the declarations that the laneway is not a 'road' within the meaning of the LG Act, the RM Act or the common law, or a public highway within the meaning of the common law is to be answered by an examination of the relevant legislation and the legal principles adopted by the common law.

Local Government Act 1989

9 The LG Act provides a legislative framework for the functions of Councils in the administration of local government in Victoria.[3] The first defendant is a Council within the meaning of the LG Act.[4]

10 The functions of Councils are set out in s 3E of the LG Act. Those functions are wide-ranging and include, inter alia, 'planning for and providing services and facilities for the local community'[5] and 'providing and maintaining community infrastructure in the municipal district'.[6] By s 3F of the LG Act, Councils have the power to do all things necessary or convenient in the performance of their functions.

11 Section 3(1) of the LG Act defines the term 'road' to include:

(c) any land reserved or proclaimed as a street or road under the Crown Land (Reserves) Act 1978 or the Land Act 1958;

(ca) a public road under the Road Management Act 2004;

(h) a footpath, bicycle path or nature strip; and

(i) any culvert or kerbing or other land or works forming part of the road.

12 'Public highway' is also defined in s 3(1) of the LG Act as follows:

public highway is a road which is open to the public for traffic as a right, irrespective of whether the road is in fact open to traffic, and includes a road -

(a) declared to be a public highway under section 204(1) or under any other Act;

(b) which becomes a public highway under section 24(2)(c) of the Subdivision Act 1988;

(c) which is a public road under the Road Management Act 2004.

13 Part 9 of the LG Act sets out the specific functions and powers of, and restrictions on, Councils. Division 2 of Part 9 contains provisions relating to transport. Within those provisions is s 204, which outlines the power of a Council to declare a road to be a public highway or to be open to the public. That section states that a Council may, by notice published in the Government Gazette, declare a road to be a public highway for the purposes of the LG Act.[7] It also states that a Council may, by resolution, declare a road that is reasonably required for public use to be open to public traffic (though such resolution does not make the road a public highway).[8] It is clear, therefore, that s 204 of the LG Act is not concerned with whether certain land is a road for the purposes of that Act, but rather whether land that has already been identified as a road (or as forming part of a road) is also a public highway.

14 Section 206(1) states that the powers of a Council in relation to roads within its municipal district include the powers set out in Schedule 10 to the LG Act. The powers set out in Schedule 10 are numerous and relevantly include a power to 'make, maintain and repair roads'.[9]

15 By s 207 of the LG Act, a Council's power over roads within its municipal district include 'the specific traffic management powers set out in Schedule 11'. As with Schedule 10, the powers contained in Schedule 11 to the LG Act are numerous. Relevantly, they include a power to 'move any thing that encroaches on or obstructs the free use of a road or that reduces the breadth, or confines the limits, of a road',[10] and a power to 'require any person responsible for, or in control of, the thing to move it.'[11]

16 Finally, s 205 of the LG Act gives Councils the care and management of certain roads in the following terms:

(b) all roads that are the subject of a declaration under section 204(2); and

(c) all public highways on Crown land and roads vested in a Minister (other than freeways and arterial roads within the meaning of the Road Management Act 2004 and public highways and roads vested in a public authority); and

(d) all roads that the Council has agreed to have the care and management of.

(2) This section is subject to the Road Management Act 2004.

Road Management Act 2004

17 The RM Act sets out the various powers and responsibilities of road authorities, including Councils. Importantly, the powers given to Councils under s 3E, Division 2 of Part 9 and Schedules 10 and 11 of the LG Act, are explicitly incorporated into the RM Act by s 5(2): that is, those parts of the LG Act (some of which are referred to above) are treated as provisions of the RM Act for the purposes of the RM Act.

18 'Road', as defined in s 3(1) of the RM Act, includes:

(c) any land declared to be a road under section 11 or forming part of a public highway or ancillary area.

It is an inclusive definition and so may extend beyond the three examples identified in the section. It is unclear, however, what else the definition may be construed to include, and neither the plaintiffs nor the defendants attempted to extend it.

19 'Public highway' is, in turn, defined as 'any area of land that is a highway for the purposes of the common law'.[12] I will return to the relevant principles as to what constitutes a 'highway for the purposes of the common law' later in these reasons; however, it is noted that the rights of the public in relation to a public highway, whether under the RM Act or at common law, can only be extinguished if the public highway is discontinued as a road under s 12 of the RM Act, or if the public highway is discontinued or permanently closed as a road under a power to do either one or both of those things conferred by another statute.[13]

20 Without derogating from any rights of passage conferred by the common law,[14] s 8 of the RM Act explicitly reserves the right of members of the general public to pass along a road, subject only to any restrictions, limitations or conditions on that right specified under the Act or any other Act or law.[15] Section 9 reserves the right of owners or occupiers of land adjoining a road to access the road from their land, again subject to any legislative qualifications.[16]

21 Sections 34 and 35 of the RM Act set out extensive functions and powers of a road authority, in particular, s 35(4) states that the powers of a road authority under that section are to be construed as additional to any other powers the road authority has under any other Act. In that regard, a note to the subsection specifically refers to the powers of a Council under the provisions of Division 2 of Part 9 of, and Schedules 1, 10 and 11 to, the LG Act.

22 The term 'road authority' is defined in s 3(1) of the RM Act by reference to s 37. Section 37(1)(e) states that the responsible road authority for a municipal road is the municipal council of the municipal district in which the road is situated. A 'municipal road' is any road that is not a State road (being a freeway or arterial road or a road declared to be a State road under the RM Act or road that is the responsibility of a State road authority under another Act) and includes any road that is referred to in s 205 of the LG Act. It was not disputed by the parties that, should the laneway be a road within the meaning of the RM Act, the first defendant would be the road authority responsible for it.

23 The term 'public road' is defined in s 3(1) of the RM Act by reference to s 17. Section 17(1)(e) states that a road is a public road if it is, inter alia, a road to which sub-s (3) applies. Section 17(3) states that the relevant road authority 'must register on its register of public roads a road in respect of which the road authority has made a decision that the road is reasonably required for general public use'. Conversely, if a road authority has made a decision that a road is no longer reasonably required for general public use, it must remove that road from its register of public roads.[17] By inclusion on a road authority's register of public roads, a road is a 'public road' within the meaning of the RM Act.[18]

24 A public road under the RM Act is also a 'road' within the meaning of the LG Act by reason of paragraph (ca) of the definition of road in s 3(1) of that Act. Furthermore, it is a 'public highway' for the purposes of the LG Act by reason of paragraph (c) of the definition of public highway in that Act.[19]

25 It follows that the effect of s 17 of the RM Act is that, by registering a road on its register of public roads, a road authority (including, potentially, a Council) makes the road a 'public road' for the purposes of the RM Act, which in turn makes the road both a 'road' and a 'public highway' for the purposes of the LG Act.

26 Section 17 of the RM Act contemplates the existence of roads that are not 'public roads'. This is because a public road is a road that satisfies one of the conditions specified in the definition in s 17(1). In this way, public roads are simply a sub-set of roads under the RM Act. To determine the declaratory relief sought by the plaintiffs' in this case, it is necessary to consider both whether the laneway is a road and whether the laneway is a public road for the purposes of the RM Act. This requires consideration of the applicable common law principles, according to which the term 'road' is defined in the RM Act.[20]

27 It is noted that there is a distinction drawn in the RM Act in respect of the duties of a road authority between roads that are public roads and roads that are not public roads. Section 40(1) of the RM Act imposes a statutory duty on a road authority to 'inspect, maintain and repair a public road' to a relevant standard. Section 40(5) gives a road authority a discretionary power to 'inspect, maintain or repair a road which is not a public road' (emphasis added), but specifically states that the authority is not under a duty to do so. The fact of a road authority treating a road as if it were under a duty to inspect, maintain and repair the road (that is, as if it were a public road) may be indicative of the fact that the road authority has made the decision referred to in s 17(3), thereby enlivening the duty in that subsection to register the road on its register of public roads.

28 As well as the declarations sought in respect of the LG Act and the RM Act, the plaintiffs seek declarations that the laneway is not a 'road' or a 'public highway' within the meaning of the common law.[21]

29 The term 'road' has a well-known colloquial meaning but, in a legal sense, it is a creature of statute, created to assist the various levels of government in managing and maintaining a complex network of transportation.[22] For the purposes of the common law, the term 'public highway' should be taken to mean all public rights of way, including those rights of way that may colloquially be described as 'roads'.

30 In this way, the terminology of the common law differs from that adopted by the statutes. Under the LG Act, a 'public highway' is a sub-set of the broader category of 'roads'. It is 'simply a road with a particular characteristic', there being other roads without that characteristic.[23] The RM Act adopts a similar taxonomy. According to the definition of 'road' in s 3(1) of that Act, the term 'road' includes 'any public highway' (which is itself defined to mean a public highway within the meaning of the common law), as well as 'any ancillary area' and 'any land declared to be a road under section 11 or forming part of a public highway or ancillary area'. This suggests that, for the purposes of the RM Act, there may be land that is treated as a road but is not regarded as a public highway by the common law, as would be the case with any land that is or forms part of an ancillary area, as designated by a road authority under s 18.[24]

31 The seminal statement of the law with respect to public highways in Australia was delivered by Windeyer J in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council:

It is the public right to use the land as a way, rather than its physical nature, that makes land a highway. At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road.[25]

32 His Honour revisited the point in City of Keilor v O'Donohue, where, in construing the provisions of the LG Act as they stood at the time, and after referring to the proposition that a public highway must connect one public place with another public place,[26] he stated:

But it is no longer necessary that to be a highway a road should lead from town to town, or village to village. Indeed it need not be a thoroughfare at all: it may be a cul-de-sac. It need not be a main road, a highway as distinct from a byway. In short, the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions.[27]

33 Windeyer J's comments in O'Donohue exemplify his point made in Campbelltown that it is the use of the land, rather than the land's particular physical features, that is determinative of whether or not the land is a public highway for the purposes of the common law. Those comments do not dispense with or somehow diminish the significance of the twin requirements of dedication by the landowner and acceptance by the public. The rule remains that, for land to become a common law public highway, there must be an intention to dedicate it to the public as a way that must be accepted by the public for that purpose.[28]

34 The intention to dedicate land as a public highway may be express or be inferred from the conduct of the landowner. It may arise from open and uninterrupted use of the land as a way by the public with the acquiescence of the landowner,[29] which evidence may double as evidence of the public's acceptance of the landowner's dedication.[30] It may also be implied by the fact that there is no barrier between the relevant land and a public highway, such that the public, when using the highway, would appear to have an open invitation onto and through the adjoining land.[31]

35 Evidence of an intention to dedicate by a landowner may also arise from the fact that a plan of sub-division lodged with the titles office shows the relevant land as a road or street open to access by the public.[32] The persuasiveness of such evidence will differ depending on the provisions of the relevant legislation. Based on the construction of s 100 of the Real Property Act 1862 (NSW) adopted by Harvey J in Attorney-General v City Bank of Sydney,[33] the New South Wales authorities have regarded such evidence as being capable on its own of leading to an inference that there has been a dedication of the land to the public.[34] That position was clearly articulated by Menzies J in Campbelltown:

...I regard it as an artificial and unreal conception that when roads are left in subdivision they are left as private roads merely for the use of those who want to get to land in the subdivision. It seems more realistic to treat such roads as shown as part of the general roadway system and as open to all so that unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road.[35]

36 In Victoria, however, the law developed somewhat differently. The early Victorian authorities held that the fact that a plan of sub-division identifies certain land as a road open to use by the public was not of itself enough to draw an inference of public dedication. That position was propounded by Gavan Duffy J in Fleming v City of Oakleigh:

...it is not reasonable to regard the deposit of the plan as in any sense a dedication to the public of the roads shown in it...It may still be that to leave a road opening into a public road without bar or gate is such an invitation to the public as to show a dedication to them...[36]

His Honour was there referring to s 211 of the Transfer of Land Act 1915, which was the Victorian equivalent to the provision considered by Harvey J in City Bank of Sydney. Whereas the Victorian provision required a map of sub-division to 'exhibit distinctly delineated all roads...appropriated or set apart for the use of the purchasers' (emphasis added), s 100 of the Real Property Act 1862 (NSW) stated that such a map must 'exhibit distinctly delineated all roads...appropriated or set apart for public use' (emphasis added).

37 It was this difference in the legislation that was the cause of the divergence in the law between Victoria and New South Wales.[37] However, more recent decisions have done much to bridge the gap between the two lines of authority. In Templestowe Developments, Ashley J (as his Honour then was) expressed the view that Gavan Duffy J might have been overstating the position when he said that a deposited plan could not be reasonably regarded 'in any sense' a dedication to the public.[38] His Honour went on to say that he regarded the latter sentence in the passage from Fleming reproduced above to be broadly consistent with the comments of McHugh JA (as his Honour then was) in Newington v Windeyer:[39]

When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action.[40]

38 In Bass Coast Shire Council v King, Winneke P (with whom Hayne and Charles JJA agreed) emphasised that a plan of subdivision is not evidence of dedication itself, but rather an intention to dedicate the relevant land should the dedication be accepted by the public:

In the normal course of events the lodging of a plan of subdivision of land in the hands of a private owner is not, of itself, evidence of dedication to the public of the roadways set out on that plan. It is taken to be nothing more than an offer to dedicate such roads which can be withdrawn at any time before the public accepts the offer.[41]

This passage is in keeping with Ashley J's summation of the authorities in Templestowe Developments.[42] Furthermore, it is consistent with the passage from Menzies J's judgment in Campbelltown where his Honour clearly qualifies the proposition that a road shown on a plan of subdivision should be regarded as a public road with the requirement that there must first be 'use of such a road as a means of passage by any members of the public'.[43] This is consistent with the twin conditions of intention to dedicate and acceptance by the public for a public highway at common law.

39 The sum of the authorities is that the clear delineation of land as a road on a map or plan of subdivision lodged with the titles office is evidence of an intention to allow the public to use the land as a road such that, where there has been sufficient use of the land as a road by the public to demonstrate acceptance, an inference may be drawn that the land was dedicated to the public for that purpose. Other facts particular to the case may be inconsistent with such an inference; for example, where the road is barred by a gate or fence. However, in most cases the inference will be readily drawn. It follows that there is no longer any practical difference between the Victorian and New South Wales authorities on this point.[44]

40 Finally, it is worth noting that land cannot be dedicated to the public unless the person or entity who has committed the act of dedication or from whose conduct the presumption of dedication may be inferred had the right to dedicate the land. The general principle, with some exceptions,[45] is that the right to dedicate is only exercisable by the owner of the land: that is, the registered proprietor.[46]

41 At common law, the landowner's intention to dedicate their land to the public as a highway was only perfected into a full dedication by the public's acceptance of the land for that purpose.[47] Evidence of the public's acceptance is typically demonstrated by repeated and continued use of the relevant land as a way by the public; that is, evidence of user.[48]

42 In cases where the intention to dedicate must be presumed or inferred from the conduct of the landowner, the manner in which the public uses the land becomes relevant. Evidence of the public's use of the land as a way 'without force, without secrecy and without permission' tends towards a conclusion that the dedication of certain land as a highway has been accepted. Further, evidence of permission or licence to the public to use the land is inconsistent with dedication at common law.[49]

43 The phrase 'without force, without secrecy and without permission' comes from the old common law concept of 'nec vi, nec clam, nec precario'. That concept has long been used by the common law to test claims of rights by user under the doctrine of prescription and the subordinate doctrine of the 'lost modern grant'. As Lord Hoffmann explained in R v Oxfordshire County Council; Ex parte Sunningwell Parish Council:

It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner...The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right - in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited purpose.[50]

44 The enactment of the Prescription Act 1832 (UK) gave the common law doctrine of prescription statutory effect.[51] That Act introduced the notion that a claimant must demonstrate their use of the land over which they claim a right of way 'as of right',[52] which notion has been replicated in subsequent enactments in the United Kingdom.[53] Those words were first considered by Parke B in Bright v Walker two years after the passing of the original Act:

Therefore, if the way shall appear to have been enjoyed by the claimant, not openly and in the manner that a person rightfully entitled would have used it, but by stealth as a trespasser would have done - if he shall have occasionally asked the permission of the occupier of the land - no title would be acquired, because it was not enjoyed, 'as of right'.[54]

45 That approach was subsequently endorsed by Cotton LJ in Earl de la Warr v Miles where his Lordship said:

...you must see whether the acts have been done as of right, that is to say, not secretly, not as acts of violence, not under permission from time to time given by the person on whose soil the acts were done.[55]

46 Far from overshadowing them, the early authorities show that the statutory importation of the words 'as of right' merely codified the existing common law principles. This was confirmed by Lord Lindley in Gardner v Hodgson's Kingston Brewery Company:

I understand the words 'claiming right thereto' and the equivalent words 'as of right', which occur in s 5 [of the Prescription Act 1832 (UK)], to have the same meaning as the older expression nec vi, nec clam, nec precario. A temporary permission, although often renewed, would prevent an enjoyment from being 'as of right'.[56]

47 The fact that a landowner knows of but neither permits nor stops the use of their land by the public is evidence of the landowner's acquiescence or toleration of the use.[57] This, in turn, demonstrates an intention to dedicate the land to the public for the purpose for which it is being used, which intention is immediately accepted by the public by their ongoing use, perfecting the dedication.[58] It follows that the absence of permission from the landowner to the public to use the land - or the landowner's acquiescence to the public's use - is indicative of the public's use being 'as of right' and therefore consistent with the dedication of the land to the public.[59]

48 The common law principles of prescription arising out of the English authorities considered above, (including the addition of the 'as of right' requirement, though a product of English legislation), have been subsequently adopted in Australia.[60] It has been said that those principles are 'central to the Australian law of prescriptive easements'[61] and continue to be applied in this country.[62]

49 It bears mentioning that evidence of use of land by the public 'as of right' does not require an examination of each individual's subjective state of mind when using the relevant land. Rather, what is important is whether the public's use of the land as a way 'would suggest to a reasonable landowner that they believed they were exercising a public right',[63] a question which must be assessed objectively.[64] If that is the case, evidence of the landowner's acquiescence to the public's use of their land may be sufficient to give rise to a presumption or inference of dedication.[65]

50 What is required to perfect a dedication of land to the public, that is, what is required in order for the public to accept a landowner's intention to the dedicate their land, will vary from case to case.[66] Where there has been a clear act of dedication on the part of the landowner, a relatively short period of public use of the land may be sufficient for the purposes of acceptance of the dedication.

51 However, where the landowner's intention to dedicate must be presumed or inferred, whether from public user or not, a longer period of public use may be required in order to show acceptance. In those cases, dedication and acceptance will often arise from the same evidence of public user and both conditions will be satisfied (or not) simultaneously.[67] In Campbelltown, where the land in question had been expressed as a road on a plan of subdivision lodged with the Registrar-General, Windeyer J held that 'no great amount of public use was necessary to make the dedication complete'.[68]

52 The plaintiffs drew the Court's attention to a different part of the same passage of Windeyer J's judgment in Campbelltown, where his Honour noted that public user after 1906 could not effect an acceptance of a public highway.[69] This was the result of legislation in New South Wales that precluded the creation of public highways according to common law principles.[70] There is no analogous provision in Victorian legislation, which makes the plaintiffs' reference to that comment of the learned judge largely irrelevant for present purposes.

53 Indeed, 'there is no fixed minimum period of public user which must be proved to show acceptance by the public and, where the facts show an intention to dedicate, a highway may be created almost at once by public user.'[71] Each case will turn on its own facts.

54 Acceptance by the public may also be shown by the conduct of a public authority in managing, maintaining and generally taking care of the relevant land, and by expending public monies in fulfilment of those responsibilities.[72] Such was the case in Campbelltown where Windeyer J held that 'the council could step in and accept [the land] on behalf of the public'.[73]

55 Finally, it is well established at common law that a public highway can arise over land already subject to a private right of way.[74] In those circumstances, the public right is created subject to the private right such that, to the extent of any inconsistency, the public must give way to the owner of the private right. However, in most cases, the public and private rights will be 'similar in extent and kind', both being rights of way, and it is therefore preferable to consider the private right as 'co-ordinate with, [rather] than as a restriction upon, the public right'.[75]

56 The common law as to the co-existence of public and private rights of way over the same land has been altered by statute in Victoria. Clause 14 of Schedule 5 to the RM Act relevantly states:

(a) develop or co-exist with a public right of way over the same land...

That provision, which is given effect to by s 45(2) of the RM Act, was the subject of oral argument during the hearing, to which I will return.

57 In considering the four declarations sought by the plaintiffs in respect of the legal status of the laneway, it is convenient to deal first with the third declaration that the laneway is not a 'road' within the meaning of the common law.

The third declaration- is the laneway not a 'road' within the meaning of the common law?

58 The second defendant submitted there was no such thing as 'a road within the meaning of the common law' and that the declaration sought by the plaintiffs to that effect was misconceived. Furthermore, it was submitted that the question of whether the laneway is a road within the meaning of the common law should be treated as being synonymous with the fourth declaration sought by the plaintiffs; that is, whether the laneway is a 'public highway' within the meaning of the common law. In effect, there is no real distinction between the third and fourth declarations and the second defendant submitted that the third declaration should be dealt with in conjunction with the fourth declaration. The plaintiffs did not rebut this submission.

59 The common law has long recognised the right of the public to pass and repass along a public highway,[76] whereas the authorities do not recognise a 'road' within the meaning of the common law, other than as a possible substitute for the term 'public highway'.[77] The common law does not recognise a 'road' as a right of way that can arise over land. Making a declaration that the laneway is not a road within the meaning of the common law would be ineffectual. In any event, the fourth declaration captures the premise and intent of the third declaration. Accordingly, it is unnecessary to consider the third declaration sought by the plaintiffs any further.

60 The plaintiffs' claims in respect of the first, second and fourth declarations are inter-related because the relevant provisions of the LG Act refer to the relevant provisions of the RM Act, which in turn refer to the common law. The common law is thereby the base upon which this legal pyramid is founded, and the legislative provisions cannot be applied without a proper assessment of the common law position.

61 It follows that the answer to the fourth declaration - that the laneway is not a 'public highway' within the meaning of the common law - will inevitably inform the answers to the first and second declarations. Accordingly, it is preferable to deal with the declaration sought at common law first, then the declaration within the meaning of the RM Act and, lastly, the declaration within the meaning of the LG Act.

The fourth declaration - is the laneway not a 'public highway' within the meaning of the common law?

62 A public highway arises over land at common law when there has been a dedication of the land by its owner to the public for that purpose. A dedication requires evidence of the landowner's intention to dedicate the land, as well as the public's acceptance of the land as dedicated. The relevant legal principles set out at [28]-[56] above were generally accepted by the parties. In particular, the plaintiffs did not dispute that the second defendant had been the registered proprietor of the land on which the laneway runs for nearly 20 years and that, for the duration of that time, the second defendant has been capable of dedicating the laneway to the public as a highway as the relevant landowner.[78]

63 The plaintiffs submitted that the best evidence of a registered proprietor's intention to dedicate or not dedicate their land as a public highway comes from the relevant title documents. The plaintiffs submitted that there was no evidence that the laneway had been dedicated to the public as a highway and, because the laneway was not described or recorded as a highway or a road on the relevant Certificate of Title or in any plan of subdivision, the inference to be drawn is that there was never an intention to dedicate the land on the part of the registered proprietor. In support of these submissions, the plaintiffs relied on Campbelltown and the passage from Windeyer J's judgment set out at [31] above. However, that passage says nothing about title documents and does not advance the plaintiffs' submissions on this point.

64 The plaintiffs referred to copy title searches of two properties nearby to the plaintiffs' property, being 168-170 and 1/180 Toorak Road, South Yarra.[79] The title searches for the two properties have an unnamed road running along their southern boundaries and marked as a road but do not include any reference to an easement over the road. The plaintiffs contend this is because there is no need for an easement over land identified in the relevant Certificate of Title as a road. The plaintiffs say this is to be contrasted with the relevant title documents for the laneway and the surrounding properties, including the plaintiffs' property. In particular, the plaintiffs referred to plan of consolidation CP168796S dated 22 November 1990 showing the laneway as being subject to easement. Accordingly, the plaintiffs say that it follows that the laneway must not be a road or a public highway because if it were it would not need to be subject to an easement and would not be described as such in the plan of consolidation.

65 The plaintiffs' submissions are contrary to the agreed facts. The parties accept that the plaintiffs enjoy a private right of way over the laneway. It is not surprising that the plaintiffs' easement is recognised on a plan of consolidation that features the laneway. However, this does not mean that the laneway is not a road, nor is it conclusive evidence that it has never become a highway under the common law. Public rights of way can be created over land already subject to one or more private rights of way.[80] Indeed, this is a case in which the private easement can be said to be co-ordinate with, rather than a restriction upon, the public right of way, should one exist.[81] The fact that the plaintiffs' easement over the laneway is shown on a plan of consolidation does not mean that the laneway cannot have been dedicated to the public. At best for the plaintiffs, it simply means that that particular plan of consolidation provides no evidence of dedication; it does not preclude the defendants from raising that evidence elsewhere. Indeed, the defendants did raise that evidence by reference to a number of title documents that showed the laneway as a road or right of way, including the original Certificate of Title to the plaintiffs' land, registered in 1920.[82]

66 From the outset, the parties accepted that the public has used the laneway without leave or licence, and in a manner that is otherwise unexplained, continuously for a long period of time.[83] The first defendant submitted that evidence of the public's use of the land as a way 'without force, without secrecy and without permission' strengthened the case for an accepted dedication of the land as a highway. The second defendant supported this view in submitting that evidence of permission or licence to the public to use the land is inconsistent with dedication at common law.

67 The plaintiffs resisted the defendants' position on this point. They submitted that the absence of permission from a landowner to the public to use their land as a right of way indicated that the landowner never intended to dedicate the land to the public. Therefore, the subsequent use of the land by members of the public without permission could not amount to an acceptance of a dedication of the land as a public highway, principally because there had been no intention to dedicate the land in the first place.

68 In support of their submission, the plaintiffs relied on the affidavit of an employee of the second defendant, Ms Sally Anne Burgess sworn 19 February 2016. In her affidavit, Ms Burgess deposed to having searched the books and records of the second defendant in relation to the laneway for any consent given by the second defendant to any person to use the laneway, other than with respect to the plaintiffs and their neighbours' easements. Despite those searches, Ms Burgess was unable to locate any such consents. The plaintiffs submitted that this evidence was inconsistent with an intention to dedicate the land as a public highway. However, the plaintiffs did not refer to any authorities that favoured their view of the law.

69 It is not surprising that the plaintiffs could not cite any authorities to support their submissions on this issue. Indeed, there is a long line of authority to the contrary that favours the defendants' submissions on this issue, some of which is set out at [43]-[46] above.[84]

70 In particular, the second sentence in the passage from Lord Lindley's speech in Gardner set out at [46] above encapsulates the point made by the defendants in this case. The common law has long considered evidence of use of land by the public 'as of right' as being consistent with the dedication of that land to the public, in circumstances where the words 'as of right' have taken on the meaning of the old common law expression 'nec vi, nec clam, nec precario'; that is, use without force, without secrecy and without permission. Put another way, use is 'as of right' if it cannot be explained by any other reasonable inference, for example, by an inference that the use was permitted by the landowner or an inference that the landowner did not know of the use.[85]

71 In this case, the evidence of Ms Burgess favours the defendants' contention that the public's use of the laneway is 'as of right'. It counters any suggestion that the public has been using the laneway pursuant to permission granted by the owner of the land (which is currently the second defendant), not that the plaintiffs led any evidence capable of making that suggestion.

72 In any case, the evidence of Ms Burgess simply reinforces what has already been agreed between the parties:

The laneway has been used as a public pedestrian access to Lovers' Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed as a laneway, or alternatively for a long period of time.[86]

That passage from the statement of agreed facts is in itself enough to establish that the public's use of the laneway has always been 'as of right' within the meaning of the relevant authorities. Such evidence demonstrates the public's acceptance of an intention to dedicate the laneway as a highway, which intention can be inferred from the second defendant's acquiescence to the public's use.[87]

73 As accepted, the passage from the agreed facts set out in the preceding paragraph leads inevitably to the conclusion that the laneway is a public highway at common law. An intention to dedicate the land as a highway may be inferred from the acquiescence[88] to the public's continuous use of the laneway 'since it was constructed, or alternatively for a long period of time' by the second defendant and its predecessors in title. That evidence also goes to the public's acceptance of the dedication, as the authorities confirm that, in some cases, evidence of long user 'as of right' will be enough to establish both the landowner's intention to dedicate the land as a highway and the acceptance by the public necessary to perfect the dedication.[89] In my view, this is such a case.

74 The dedication of the laneway as a public highway is also supported by the assumption by the first defendant of responsibility for the laneway's care and maintenance.[90] In this regard, counsel for the first defendant relied on a bundle of documents titled 'Tender Documents - November 1995'.[91]

75 Those documents were prepared by the first defendant as part of a process whereby it sought to contract out street cleaning services for its municipal district. The documents describe the various routes that the first defendant has assumed responsibility for cleaning, including adjacent rights of way and lanes. One of the routes identified for cleaning is the plaintiffs' street (William Street), which takes in the lanes running off it (including the laneway).

76 By taking responsibility for the cleanliness of the laneway, and by demonstrating an intention to expend public monies for that purpose, the first defendant should be regarded as having treated the laneway as a public highway on behalf of the public. This supports the conclusion that the public has been using the laneway 'as of right' for some time, and certainly since November 1995.

77 For their part, the plaintiffs raised little resistance to the conclusions relied upon by the defendants. The bulk of the authorities relied on by the plaintiffs in their written submissions related to the law of easements. Those authorities were briefly developed in oral submissions but were not added to in any substance.

78 The plaintiffs relied on those authorities in support of the proposition that their private easement of carriageway over the laneway precludes the creation or development of a public right of way over the same land. That proposition is contrary to well-established principles.[92] Furthermore, it does nothing to advance the case for the declaration sought by the plaintiffs that the laneway is not a public highway at common law.

79 Nevertheless, in support of their argument the plaintiffs also relied on cl 14 of Schedule 5 to the RM Act.[93] Schedule 5 to the RM Act deals with the ownership of roads and highways, and the powers and duties of the relevant authorities. The plaintiffs' argument is that cl 14 of Schedule 5 to the RM Act precludes the dedication and use of land as a public highway in circumstances where the land is already subject to a private right of way. For their part, the defendants submitted that the true effect of the provision is precisely the opposite of what was pressed by the plaintiffs; that is, the existence of a public right of way over land automatically prohibits the exercise of a private right of way or easement over that land, regardless of which was first in time.

80 The defendants' construction of the provision must be preferred. The language of clause 14 to Schedule 5 of the RM Act clearly subordinates a 'private right of way or easement' to a 'public right of way over the same land', such that the former is eclipsed by the latter regardless of which was first in time. The RM Act does not define 'public right of way', but on any view that term must include a 'road' within the meaning of that Act or a 'public highway' within the meaning of the common law (which are equivalent for the purposes of the RM Act). It follows that, since 1 July 2004, all public rights of way have existed to the exclusion of private rights of way to the extent that the two overlap.

81 For the purposes of this case, it is enough to say that this result defeats the plaintiffs' contention that clause 14 of Schedule 5 to the RM Act operates to preclude the creation of a public right of way over the laneway because of the pre-existing easement. It may be that, if I find that the laneway is a road within the meaning of the RM Act, the effect of the provision is to extinguish whatever private rights the plaintiffs may enjoy over the laneway. However, the defendants did not press the point, and correctly so. In any case, it is not necessary to decide for the purposes of dealing with the declaratory relief sought by the plaintiffs.

82 I am satisfied that the laneway is a public highway for the purposes of the common law. Accordingly, there is no basis for making the fourth declaration sought by the plaintiffs.

The second declaration - is the laneway not a 'road' within the meaning of the RM Act?

83 My conclusion in respect of the fourth declaration provides the missing piece of the legislative puzzle, which can now be assembled to answer the first and second declarations sought by the plaintiffs. First, the latter: is the laneway a 'road' within the meaning of the RM Act?

84 The relevant provisions of the RM Act have been set out earlier in these reasons. However, it is worth recalling that the term 'road' is defined in s 3(1) of that Act to include:

(c) any land declared to be a road under section 11 or forming part of a public highway or ancillary area.

85 Of the three examples provided in that definition, the defendants sought to rely on (a) in resisting the second declaration sought by the plaintiffs; that is, the defendants submitted that the laneway is a 'public highway' within the meaning of the RM Act. 'Public highway' is defined in the RM Act by reference to common law principles. Therefore, a highway at common law is a road for the purposes of the RM Act.

86 Given my finding that the laneway is a highway at common law, it must also be a road under the RM Act. This being the case, the second declaration sought by the plaintiffs cannot be made.

87 For completeness, it is worth noting that the defendants did not seek to rely on subparagraph (c) of the definition of 'road' in the RM Act, despite the first defendant being a road authority with the relevant declaratory power contained in s 11(1). If the first defendant had exercised that power in respect of the laneway, there would be no doubt as to its status as a highway at common law.[94] No evidence was led to suggest that the power had been exercised in that way. However, the first defendant's failure to exercise the power in s 11(1) does not preclude a finding that the laneway is a highway according to well-established common law principles.[95]

The first declaration - is the laneway not a 'road' within the meaning of the LG Act?

88 By reason of subparagraph (ca) of the definition of 'road' in s 3(1) of the LG Act, a 'public road' under the RM Act is a 'road' for the purposes of the LG Act. Section 17 of the RM Act deals with 'public roads'. In short, a road is a public road if it is registered on the relevant road authority's register of public roads.[96]

89 It was not disputed that the first defendant is the relevant road authority for the laneway. Furthermore, it was accepted that the first defendant registered the laneway on its register of public roads on or about 7 July 2004.[97]

90 The inclusion of the laneway on the first defendant's register of public roads is conclusive of the laneway's status as a public road under the RM Act, and therefore a road under the LG Act. This is supported by the first defendant's assumption of responsibility for the cleaning and general maintenance of the laneway,[98] which is consistent with its duties under Division 2 of Part 9 of the LG Act. For these reasons, the first declaration sought by the plaintiffs in this case cannot be made.

91 I have concluded that the laneway is a road under the relevant statutory provisions and a highway open to the public at common law. Accordingly, the plaintiffs have been unsuccessful in obtaining the declarations they have sought.

Further directions for the plaintiffs' claim for damages

92 There remains to be determined the plaintiffs' claim for damages for the action in nuisance against the second defendant. The schedule attached to the plaintiffs' further amended statement of claim sets out 248 alleged acts of nuisance emanating from the laneway between June 2012 and November 2015, which they allege has caused them to incur fees, suffer emotional distress, and to be 'afraid during some evenings when home'.[99] The plaintiffs allege they have used their best endeavours to remedy the various alleged acts of nuisance and, in a separate schedule to the further amended statement of claim, the plaintiffs set out the details of the manner in which they sought to remedy the nuisance and the costs incurred by them in doing so.

93 In view of these reasons, the parties should discuss the further hearing for the nuisance claim against the second defendant. If directions cannot be agreed, the proceeding will be listed for further directions on 29 July 2016.

[1] Described in Certificate of Title Volume 9990 Folio 084.

[2] The laneway is registered in the name of the Metropolitan Transit Authority but was allocated to the second defendant by an Allocation Statement dated 30 June 1996 pursuant to the Rail Corporations Act 1996 (now called the Rail Management Act 1996 by reason of s 200(1) of the Transport Integration Act 2010).

[3] Local Government Act 1989, sub-ss 1(5) and 1(6).

[4] Ibid s 3(1).

[5] Ibid s 3E(1)(b).

[6] Ibid s 3E(1)(c).

[7] Ibid s 204(1).

[8] Ibid ss 204(2) and 204(3).

[12] Road Management Act 2004, s 3(1).

[13] Ibid s 10. See also Windeyer J's comments on the applicable common law principles in Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council [1960] HCA 62; (1960) 105 CLR 401, 422: '"Once a highway always a highway" was the adage of the common law.'

[14] Ibid s 8(4).

[15] Ibid s 8(5).

[16] Ibid s 9(2).

[17] Ibid s 17(4).

[18] Under the RM Act, the question of whether a road is a 'public road' is distinct from the question of whether a road is a 'public highway'. Whilst inclusion on a road authority's register of public roads automatically makes a road a public road by reason of the interaction between sections 17(1)(e) and 17(3), section 17(5) makes clear that the removal of a road from an authority's register of public roads (or the non-inclusion of the road on the register in the first place) does not affect the status of the road as a public highway or the rights of the public to use the road as a public highway.

[21] The authorities use the terms 'highway' and 'public highway' interchangeably in the context of the common law.

[22] See, for example, and in addition to the LG Act and the RM Act: Road Safety Act 1986, s 3(1); Transport Act 1983, s 2(1); Local Government Act 1993 (NSW), s 3; Transport Infrastructure Act 1994 (Qld), s 20(1); Highways Act 1926 (SA), s 7; Land Administration Act 1997 (WA), s 3.

[23] Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504, 517 (Ashley J) ('Templestowe Developments').

[24] Land declared to be a road under section 11 of the RM Act is automatically treated as a public highway within the meaning of the common law by reason of section 11(4).

[25] Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council [1960] HCA 62; (1960) 105 CLR 401, 420 ('Campbelltown') (citations omitted). See also Casson v Leichhardt Council [2011] NSWLEC 243 (16 December 2011) [59]-[63] (Biscoe J).

[26] See Bailey v Jamieson (1876) 1 CPD 329, 332 (Lord Coleridge CJ); although the proposition that a cul-de-sac could, on the facts, be a public highway at common law can be traced back to as early as 1790 and the comments of Lord Kenyon CJ in Rugby Charity Trustees v Merryweather (1790) 11 East 376n.

[27] City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353, 363 ('O'Donohue'); cf Fleming v City of Oakleigh [1934] VicLawRp 49; [1934] VLR 263, 266 (Gavan Duffy J).

[28] Newington v Windeyer (1985) 3 NSWLR 555, 559 (McHugh JA); Calabro v Bayside City Council [1999] VSC 509; [1999] 3 VR 688, [22]-[28] (Balmford J).

[29] Owen v O'Connor (1963) 9 LGRA 159, 168 (Sugerman J).

[30] Turner v Walsh (1881) 6 App Cas 636, 642 (Sir Montague Smith); Metters v District Council of West Torrens [1910] SALawRp 2; [1910] SALR 1, 7 (Way CJ).

[31] Fleming [1934] VicLawRp 49; [1934] VLR 263, 266 (Gavan Duffy J); Newington v Windeyer [1985] 3 NSWLR 555, 559 (McHugh JA).

[32] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 412 (Kitto J); 415 (Menzies J); 422 (Windeyer J).

[33] Attorney-General v City Bank of Sydney [1920] NSWStRp 9; (1920) 20 SR (NSW) 216 ('City Bank of Sydney').

[34] Ibid 221; Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 412 (Kitto J); 415 (Menzies J); 422 (Windeyer J); Weber v Ankin [2008] NSWSC 106 (22 February 2008) [54]-[57] (White J).

[35] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 415 (Menzies J).

[36] Fleming v City of Oakleigh [1934] VicLawRp 49; [1934] VLR 263, 266 ('Fleming').

[37] Templestowe Developments [1997] 1 VR 504, 518 (Ashley J).

[40] Newington v Windeyer (1985) 3 NSWLR 555, 559.

[41] Bass Coast Shire Council v King [1997] 2 VR 5, 18.

[42] See also Calabro v Bayside City Council [1999] VSC 509; [1999] 3 VR 688, [22]-[28] (Balmford J).

[43] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 415.

[44] See also Land Act 1958, s 25(4).

[45] See Harold Parrish and Lord De Mauley, Pratt and MacKenzie's Law of Highways (Butterworth, 21st ed, 1967) 24-30.

[46] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 420 (Windeyer J).

[47] Owen v O'Connor (1963) 9 LGRA 159, 169 (Sugerman J).

[48] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 415-6 (Menzies J).

[49] Narracan Shire President v Leviston [1906] HCA 34; (1906) 3 CLR 846, 857-9 (Griffith CJ), considering in detail Barraclough v Johnson [1838] EngR 552; (1838) 112 ER 773.

[50] R v Oxfordshire County Council; Ex parte Sunningwell Parish Council [1999] UKHL 28; [2000] 1 AC 335, 350-1 (Lord Hoffmann) ('Ex parte Sunningwell'). See also R (Barkas) v North Yorkshire County Council [2014] UKSC 31; [2015] AC 195, 205-8 (Lord Neuberger PSC).

[51] Maio v City of Stirling (No 2) [2016] WASCA 45 (16 March 2016) [72] (Murphy JA).

[52] Prescription Act 1832 (UK), s 5.

[53] See, eg, Ex parte Sunningwell [1999] UKHL 28; [2000] 1 AC 335, 356 (Lord Hoffman); R (Barkas) v North Yorkshire County Council [2014] UKSC 31; [2015] AC 195, 205-6 (Lord Neuberger PSC).

[54] Bright v Walker [1834] EngR 32; (1834) 149 ER 1057, 1060.

[55] Earl de la Warr v Miles (1881) 17 Ch D 535, 596. See also Brett LJ's judgment in that case at 591.

[56] Gardner v Hodgson's Kingston Brewery Company Limited [1903] AC 229, 239 ('Gardner').

[57] R (Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889, 894-5 (Lord Bingham), 908 (Lord Rodger), 913 (Lord Walker) ('Beresford'). See also Dillon LJ's judgment in Mills v Silver [1991] 1 All ER 449, 455 for the often difficult distinction between acquiescence and implied permission on the part of a landowner (cited with approval by Lords Bingham and Walker in Beresford).

[58] Harold Parrish and Lord De Mauley, Pratt and MacKenzie's Law of Highways (Butterworth, 21st ed, 1967) 35, citing Hue v Whitely [1929] 1 Ch 440 and Jones v Bates [1938] 2 All ER 237.

[59] The importance of the use being without the permission of the landowner was recently emphasised by Lord Neuberger PSC in distinguishing between use 'as of right' and use 'by right', the latter being subject to express or implied permission: R (Barkas) v North Yorkshire County Council [2014] UKSC 31; [2015] AC 195, 212.

[60] Delohery v Permanent Trustee Company of New South Wales [1904] HCA 10; (1904) 1 CLR 283, 301 (Griffith CJ); Williams v State Transit Authority of NSW [2004] NSWCA 179; (2004) 60 NSWLR 286, 292-3 (Mason P); Maio v City of Stirling (No 2) [2016] WASCA 45 (16 March 2016) [72]-[78] (Murphy JA).

[61] Peter Butt, 'Use "as of right"' (2004) 78 Australian Law Journal 162, 164.

[62] See Williams v State Transit Authority of NSW [2004] NSWCA 179; (2004) 60 NSWLR 286 for a discussion of the relevance of the common law doctrines of prescription and lost modern grant in the context of the Torrens system of title by registration and indefeasibility.

[63] Ex parte Sunningwell [1999] UKHL 28; [2000] 1 AC 335, 354 (Lord Hoffmann).

[64] R (Barkas) v North Yorkshire County Council [2014] UKSC 31; [2015] AC 195, 207-8 (Lord Neuberger PSC).

[65] Ex parte Sunningwell [1999] UKHL 28; [2000] 1 AC 335, 354 (Lord Hoffmann).

[66] Harold Parrish and Lord De Mauley, Pratt and MacKenzie's Law of Highways (Butterworth, 21st ed, 1967) 35, citing Rugby Charity Trustees v Merryweather (1790) 11 East 376n and Jarvis v Dean [1826] EngR 890; (1826) 3 Bing 447.

[68] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 423.

[70] See section 8 of the Roads Act 1993 (NSW).

[71] Harold Parrish and Lord De Mauley, Pratt and MacKenzie's Law of Highways (Butterworth, 21st ed, 1967) 33, citing Woodyer v Hadden [1813] EngR 489; (1813) 5 Taunt 125.

[72] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 422 (Windeyer J); Owen v O'Connor (1963) 9 LGRA 159, 169 (Sugerman J); Casson v Leichhardt Council [2011] NSWLEC 243 (16 December 2011) [61] (Biscoe J).

[73] Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 424.

[74] Born v Huntley [1886] SALawRp 8; (1886) 20 SALR 33, 38 (Way CJ).

[75] Harold Parrish and Lord De Mauley, Pratt and MacKenzie's Law of Highways (Butterworth, 21st ed, 1967) 19.

[76] Sir Edward Coke included 'the king's highway for all men' in his threefold classification of ways under English law: Harold Parrish and Patrick Freeman, Pratt and Mackenzie's Law of Highways (Butterworth, 19th ed, 1952) 8-9.

[77] See, eg, Chief Commissioner for Railways and Tramways (NSW) v Attorney-General for New South Wales [1909] HCA 75; (1909) 9 CLR 547, 560 (O'Connor J); Elizabeth Valley Pty Ltd v Fordham (1970) 16 FLR 459, 461 (Blackburn J); Corporation of Tea Tree Gully v Jennings Estates and Finance Ltd (1972) 2 SASR 354, 361-2 (Wells J); Fenelon v Dove [2010] VSCA 187; (2010) 28 VR 619, 633-4 (Beach AJA).

[78] Harold Parrish and Lord De Mauley, Pratt and MacKenzie's Law of Highways (Butterworth, 21st ed, 1967) 24.

[79] Certificates of Title Volume 2718 Folio 583 and Volume 9250 Folio 690 respectively.

[80] Born v Huntley [1886] SALawRp 8; (1886) 20 SALR 33, 38 (Way CJ).

[82] See subparagraph (k) of the agreed facts at [7] above.

[83] See subparagraph (ff) of the agreed facts at [7] above.

[85] Maio v City of Stirling (No 2) [2016] WASCA 45 (16 March 2016) [74] (Murphy JA).

[86] Statement of Agreed Facts, [33].

[87] See, eg, Ex parte Sunningwell [1999] UKHL 28; [2000] 1 AC 335; R (Barkas) v North Yorkshire County Council [2014] UKSC 31; [2015] AC 195; Maio v City of Stirling (No 2) [2016] WASCA 45 (16 March 2016).

[88] Some of the English authorities refer to the 'toleration' of the landowner in this regard: see, for example, Ex parte Sunningwell [1999] UKHL 28; [2000] 1 AC 335, 358 (Lord Hoffmann).

[89] Turner v Walsh (1881) 6 App Cas 636, 642 (Sir Montague Smith); Metters v District Council of West Torrens [1910] SALawRp 2; [1910] SALR 1, 7 (Way CJ).

[90] See [54] above and the cases cited therein.

[94] Road Management Act 2004, s 11(4).

[95] Ibid s 11(11).

[96] For an analysis of s 17 of the RM Act and its relevance to this case, see [23]-[25] above.

[97] See subparagraph (v) of the agreed facts at [7] above.

[99] Plaintiffs' Further Amended Statement of Claim, [39].